Press release: 29 September 2021

Australia doubles down on climate inaction in Torres Strait complaint

The Australian Government has continued to deny its responsibility to protect its most vulnerable citizens from climate change, as detailed in its final reply to a human rights complaint brought by Indigenous Torres Strait / Zenadh Kes people.

In the lead up to this year’s make or break COP climate talks, Australia has continued to absolve itself in its last official response to the UN Human Rights Committee in Geneva. Its reply states that Australia is already doing enough on climate change, and that the future impacts of climate change are too uncertain to require it to act.

Australia’s statement was the final procedural step in a world-first complaint brought by eight Torres Strait Islander Traditional Owners in 2019, alleging that their Government has failed to uphold its human rights obligations and that its inaction has led to violations of their rights to culture, life and family.

Evidence from the ‘Torres Strait Eight’ shows climate change wreaking havoc on their low lying island homes, with rising seas leading to coastal erosion as well as flooding of homes, sacred cultural sites and burial grounds.

Yessie Mosby, a Zenadh Kes Masig man living in the Kulkalgal tribe area, and a claimant in the case said:

“We invited the government to visit our islands but they declined our invitation. It is a lie for the government to say that we are not affected by climate change right now.

“We have seen our island homes wash away. We fear the high tides and we notice the seabirds not returning. We watch the winds blow stronger and for longer. We have seen our loved ones' remains wash away with the rising seas.

“The Government has a duty of care and it's for all Australians not just for the people who live down on the mainland. Tell the truth – you are not trying your best to help us. Stop lying.”

Claimants have been expecting a decision this year. However following delays in the legal process, lawyers for the claimants recently wrote to the Committee respectfully calling on the UN group to expedite the complaint and come to a decision urgently.

In their letter, lawyers highlighted that while Australia was granted extensions to reply, the Intergovernmental Panel on Climate Change (IPCC) released its Sixth Assessment Report. This report – a “code red for humanity” – outlined significant increases in the level of projected sea level rise compared to its previous report.

In its second and final reply to the complaint, the Government said the case should be dismissed because it cannot be responsible for future risks, and because any one country cannot be held legally responsible for climate change.

Australian lawyer Sophie Marjanac, with environmental legal charity ClientEarth, is acting for the claimants. Marjanac said:

“In its response to the Human Rights Committee, Australia claims that it cannot be held legally responsible for an international problem like climate change and that it is already doing enough to address it.

“But Australia continues its support for fossil fuels, of which it is a massive exporter, and is among the world’s biggest emitters per capita. If Australia is not required to act under human rights law, then who is?”

In the lead up to the COP26 climate talks in Glasgow in November, there is real concern that Australia will be a wrecking influence on international efforts, with its continued support of coal and fossil gas.

Australia’s track record of working against international efforts to tackle climate change is concerning. Just this month it was revealed it had pressured the UK to remove key climate commitments from a new trade deal.

Australia lags far behind other countries like the US, UK and Japan, has failed to commit to a net zero emissions target by 2050 and continues to use “accounting tricks” when calculating its emissions reductions.

ENDS

Media contact:

For interviews with Yessie Mosby, please contact 350.org Australia: Lucy Manne, lucy@350.org.au, +61 (0)417 387 516

For interviews with Sophie Marjanac please contact ClientEarth: Martin Watters, mwatters@clientearth.org, +44 (0)74321 107787

About the complaint:

• The complaint was the first climate change litigation brought against the Australian Federal Government, based on human rights and the first legal action worldwide brought by inhabitants of low-lying islands against a nation state.
• Lawyers with environmental law non-profit ClientEarth, are representing the Torres Strait / Zenadh Kes claimants, with support from barristers from Twenty Essex in London. The claim is supported by the Torres Strait’s leading land and sea council that represents the regions’ traditional owners, Gur A Baradharaw Kod (GBK), environmental group 350 Australia, and the Seed Youth Indigenous Climate Network.
• The complaint asserts that by failing to take adequate action to reduce emissions or to implement proper adaptation measures on the islands, Australia is failing its legal human rights obligations to Zenadh Kes people. These are the right to life, rights to culture, the right to the protection of family and home, and the rights of children under one of the first global human rights treaties, the International Covenant on Civil and Political Rights. The case’s legal arguments have been detailed further in this Open Global Rights article.
• Australia has submitted two responses to the complaint. The first stated the case should be rejected because it concerns future risks, rather than impacts being felt now. Australia’s lawyers also stated that because the country is not the main or only contributor to global warming, climate change action is not its legal responsibility under human rights law.
• The second response repeats the arguments of the first, adding that Australia is already doing enough to address climate change. Australia’s lawyers also said that climate change issues are a policy debate, and thus outside of the scope of the International Covenant. Lawyers also claimed that climate change cannot affect the right to practice culture.

Timeline of the complaint:

• May 2019: Eight Torres Strait / Zenadh Kes Traditional Owners lodge a complaint with the UN Human Rights Committee in Geneva.
• November 2019: Australian PM Scott Morrison and Minister for Emissions Reduction Angus Taylor refuse an invitation to visit the climate-hit islands of the claimants.
• February 2020: The Australian Government commits $25 million in climate adaptation spending for the region – one of the key asks from the claimants.
• August 2020: The Government submits an official reply to the UN, arguing that the complaint should be dismissed.
• September 2020: Claimants submit an official reply to the UN, refuting Australia’s arguments that it is not responsible for climate change impacts.
• December 2020: The current and former UN Special Rapporteur for Human Rights and the Environment submit a joint amicus curiae brief backing the complaint.
• August 2021: The Government submits an official reply to the UN, repeating claims that the complaint should be dismissed.
• The claimants now await a decision from the Committee.

About ClientEarth

ClientEarth is a non-profit organisation that uses the law to create systemic change that protects the Earth for – and with – its inhabitants. We are tackling climate change, protecting nature and stopping pollution, with partners and citizens around the globe. We hold industry and governments to account, and defend everyone’s right to a healthy world. From our offices in Europe, Asia and the USA we shape, implement and enforce the law, to build a future for our planet in which people and nature can thrive together.